19791212 TZHC Dodoma

IN THE HIGH COURT OF TINZANIA

AT DODOMA

APPELLATE JURISDICTION CRIMINAL APPEAL No.188 OF 1978. (Original. Criminal Case No.469'of 1978 of the District Court of Dodoma F Before Kajeri, Esq., Ridrit Ma:istrate) • MANNER IHAIV]ED IMED . . . . . Appellant Original Accused) versus THE REPUBLIC . . . . . . . . . Respondent (Original Prosecutor) CHpRGETwo Counts of CorruM trans ction contr ry to section 3(1) & (3) of'th.e Prevention of Corri.ption Act, No.16 of1971.

J U D G M E N T The appellant Manner !thmed Hemod was convicted of two counts of Corrupt Transaction contrary to section 3(1) & (3) (a) of the. Prevention of Corruption Act, No.16 of 1971 and he was sentenced to four years imprisonment I on each count, sentondes to run concurrently. He now appeals to this Court.' The appellant was en accounts clerk who was working with the National Houseing Corpor.tion at Dodoma. The two complainants Ali Amani (P1.2) and Athumani Omen (P111.3) are tenants of a house belonging to the National Houzeing Corporation in Dodorna Township. On 20/9/78 PW. 3 Athurnani Oman wes a 'reached by the appellant who handed over a letter rrquiriig Atumani and Au to quit the promises within two days. P. 3 Athumi said that he was instructc3d by the appellant to. go to the National Houseing Corporation Offico for discuseion on extension of time. On 21.9.78 Athumani and Au i'ont to the appellant' s office where the apolIant de: 'nded cash payment of she. 100/= or She. 1 501= so that he would allow the complainants to remain in the :priscs. The complainants reported the matter to Detective Sgt. Major Elikana (PW.i) on the snmo day, 21.9.78 and a trap was arranged. D/Sgt. Maj or Elikana •ave She. 100/- to Pt4.2 lai and the serial numbers of the five Shs.20/- notes were r -'corded. . Detectives proceoed to the scene with an independent witness .E:J4 Obedi Michael

Nyeni who was also shown the paper where the serial numbers of the notes wore recorded.' /2 -2- PW.2 Ali end PW.3 Athumani entered the apellait' s office and the Detectives toother with P.4 Obodi remained outside. Inside the appollan's office, tle complainants found the appellant end two othors Pi.5 Josiah Hbacha and PW.6 Vorian John both of whom work with thb National Iousein Corportion, but they occupy different tablo from the appellant. 1i..2 A•-li gave the money to t h c appellant whç received it. Thc appellant vnapod thomonoy in piece ofpaper and issued thorn with a letter (Exh. P5) authorizing PM. 3 Athunani to stay in the house. After the appellnt had received the money, PW.2 All end PW.3 Athumani walked out of the office, end as arranged P4.2 All put his hands in his pocket and the Detectives proceeded to the office.-. PW.5 Josiah and PW.6 Verian John had soon the appe]lai-t bolting. the door after the complainants had left the office. The witnesses said -they also saw +ho appellant thoiing something out, through the windo b.;foro P.5 esi opened the door for the Dtectives. D/Sgt. Major Eliinna who entered the office after the prdlonged knocking at the door, suspect d the money was thrown out of the window and instructed his Detectives to look fvr the money which was found, wrapeod. in a piece of pep r, outside the window of the appellant's office. The serial numbers of

the curoncy notes agreed. with the nurabors previously recorded by Oct. Sgt. Major Elikara. The appollant in his evidence on oath and in the rnomrendurn of appeal deniod he ever solicited for the bribe. He also doniod that he-received the monc.y He agreed that he served the eviction order to -PW,3 Athurnani on 20/9/78. He also a'oed he issucd thÔ letter (Exh.P5) authorizing PW,3 Athumani to remain in the house but that he did not receive any money from PW.3 Athumani or PW.2 All. The appellant said in his memorandum that he did not know PW.2 All before and could not have solicited a bribe from him. From the evidence P1.2 Ali and PW.3 Athurnani went to to appellant's office aft;r PM. 5 Josiah Mbacha had referred them to the appellant. It . is true that the name of /1.i does not ap.oar on t.:ellocr,tion letter (Exh.P5) but the "cjuit notice" is in th :oane of both complainants as they wore shari the preaises. .13. _3*_ ft The appellent further complains that the monor was not foirnd in his possession by the Police. That is true. But the evidence of the complainar.ts P4.2 All and Athumani that appelluit received the money is supported by that of PW.5 Josiah Magumba Mbacha who saw with his own eyes as the appellant, received the money from PW.2 AU in the presence of PW.3 Athumoni, The appellant issued the allocation lotter allowing the two tenants to continue staring in the house

only a'ter PW.2 .Ali had given him the ronoy and do ny this was corruption. PW.5 Josiah and PW.6 Verier John saw when the appellant procc:clod to the window ftor the complainants had- left the office. Josiah saw appellant throwing somut.1 ing throuh the window. It was outside the same window that the Police Detectives recovered, a few minutes later, t L money. evidence is ovcrwheliiir ', ti t it ws the s w'ich the Police had given to .PW2 Au. 1he currency ntos were the same ones, as the serial nunb:..rs hed been recorded and independent witnesses like PW 4 Obodi ryoC.i and PW .8 Timothy Suda compared t].e numbers on the currency motes with those in the paper as previously recorded by the Police. So although the Dotebtives did not find the money in the appellant's possession, the evidence of the complainan.ts that the appellant received the money is supported by the evidence of those colleaios of the appellant P!L5 Josiah Mbacha and PW.6 Verian John.. There was ample corroboratien of the complainants evidence and I can sec no reason to suspct conspiracy to frame the appellant as alleccd in the memorandum of appeal. The appellant told t:is Court that e ieh.d to call two witnesses but the loarn.A trial megietr to refused him to call the witnuemee. The record of' th lower court clearly shows that the ap•el1an.t s id h. did not wish to call any witnesses. I can s.. no reason to

doubt the correctness of the r cord of the lower court. .14. I. M. The evidence adduced at the trial amply supports the conviction in both counts and the appeal against conviction is dismissed. The learned Resident iagistr ;avu. Teas 0113 for imposing concurrent sr'toncc$ of four years imprisonment. The offence is prevalent ad this isa srious offoac. In the circumstances te ser:bur.cc•car• ot be : - considored. as manifestly excoseive as to warrant an interf::'Lnce by this Court. Accordinly the s:r.tence which require-s confirmation by this Court is her'by confirmed, In the result this apical fails and it is cliamiseed in its ontiroty, W 1 . T I) . wrA Tj' i- Ut JUD-E Delivered in open Cou.±'t this 12th day of Dcembor, 1979 in the presence of Mr. Alimwiko Senior State Attorney and the appellant in person. - -. W. J. MAIN A

JUDGE